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Case Number

Between

Attorney(S)

For Appellant.— Ms. Rasmeet K. Charya.
For Respondents.— Sri Vinay Sabharwal.

Judges

Sri S.B Sinha, C.J
Sri A.K Sikri, J.

Acts

INDUSTRIAL DISPUTES ACT 1947
afresh.6. Section 33(2)(b) of the Industrial Disputes Act

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Smart Summary

Structured Summary of the Opinion (Sinha, C.J.) — Letters Patent Appeal

Factual and Procedural Background

The appellant was served with a chargesheet on 15 December, 1992. A departmental enquiry was conducted which resulted in his termination from service. The respondent filed an application under Section 33(2)(b) of the Industrial Disputes Act, 1947 (marked OP No. 135/93). By order dated 27 May, 1999, the Tribunal dismissed that application, holding that the enquiry report was perverse because the management had, on the one hand, treated the period of absence as leave without pay and, on the other hand, sought approval for terminating the employee on the basis of that absence. The Tribunal found these positions contradictory and dismissed the petition.

Despite the Tribunal's order refusing approval of the termination, the appellant was not reinstated nor paid back-wages. The appellant then filed a writ petition under Article 226 of the Constitution. A learned Single Judge dismissed that writ petition on the ground that the appellant had an alternative remedy under the Industrial Disputes Act. The present Letters Patent Appeal challenges that dismissal.

Legal Issues Presented

What is the legal effect of the Tribunal's refusal to grant approval under Section 33(2)(b) of the Industrial Disputes Act — specifically, whether the order of dismissal is void ab initio and whether the employee is to be treated as continuing in service with entitlement to back-wages?
Whether a writ petition under Article 226 is maintainable to enforce reinstatement and back-wages where the Tribunal has refused approval under Section 33(2)(b), or whether the employee must pursue some other remedy under the Industrial Disputes Act (for example, Section 33-A or other proceedings)?
Whether the employer (a State within the meaning of Article 12) is obliged to implement the Tribunal's order refusing approval and, if it does not, whether such inaction is arbitrary and attracts writ jurisdiction.

Arguments of the Parties

Appellant's Arguments

Non-grant of approval by the Tribunal under Section 33(2)(b) renders the order of dismissal void ab initio; accordingly, the appellant must be treated as if he continued in service for all purposes and is entitled to salary for the intervening period (back-wages).
Given that the dismissal is void on the Tribunal's refusal, the appellant need not resort to any further proceedings to obtain reinstatement and back-wages; he may seek relief directly under Article 226.

Respondent's Arguments

The appellant should take recourse to the proceedings available under the Industrial Disputes Act (the respondent suggested a remedy under Section 33-A or other provisions), because during the intervening period the appellant might have been serving elsewhere.
Non-grant of approval by the Tribunal does not render the entire departmental proceedings non est; the employer may lawfully initiate fresh departmental enquiry proceedings if it so chooses.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Managing Director, Tamil Nadu State Transport Corporation v. Neethivilangan, Kumbakonam, [2001 (3) L.L.N 34]	Holds that an employer's order of dismissal under S.33(2)(b) remains inchoate until the Tribunal grants approval; if the Tribunal refuses approval, the employee continues to be in service and is entitled to consequential benefits including wages. A writ under Article 226 is maintainable to enforce this right.	The Court relied on this decision to conclude that the Single Judge erred in dismissing the writ petition and that the appellant was entitled to reinstatement and back-wages without requiring recourse to other proceedings.
Jaipur Zila Sahakari Bhoomi Vikas Bank, Ltd., Vikas v. Ram Gopal Sharma, [2002 (1) L.L.N 639] (Constitution Bench)	Explains that when approval under the proviso to S.33(2)(b) is refused, the employee is to be treated as if the order of dismissal had never been passed; no separate order of reinstatement is required. Also clarifies the role of S.33-A (available to an employee to challenge an approval).	The Court applied this principle to hold that refusal of approval meant the employee continued in service and was entitled to all benefits; therefore reinstatement and back-wages should be granted and there was no need to insist on alternate or further proceedings.
Punjab Beverages (Private), Ltd., Chandigarh v. Suresh Chand, 1978 (1) L.L.N 665	This case was cited by the Apex Court in the Managing Director (Tamil Nadu) decision and was treated as one of the earlier decisions considered in forming the principle regarding the inchoate nature of dismissal under S.33(2)(b).	The present Court noted that this decision was among the authorities considered in Managing Director (Tamil Nadu) and, through that, contributed to the legal foundation for treating the dismissal as inchoate until Tribunal approval.
Tata Iron and Steel Company, Ltd. v. S.N. Modak, [A.I.R. 1966 S.C. 380]	This case was also cited as one of the decisions taken into account by the Apex Court in the Managing Director (Tamil Nadu) judgment.	The present Court recorded that the Managing Director decision had considered this authority; it was therefore part of the precedential basis for the conclusions reached about the effect of refusal of approval under S.33(2)(b).

Court's Reasoning and Analysis

The Court began by setting out the admitted facts (chargesheet, departmental enquiry, termination, Tribunal's refusal to grant approval under S.33(2)(b), and non-reinstatement/non-payment of back-wages). It then considered the statutory language of Section 33(2)(b) and the proviso requiring that the employer make an application for approval and pay one month's wages before dismissing.

The Court observed that the question of the legal effect of non-grant of approval under S.33(2)(b) had been authoritatively addressed by the Apex Court. Relying on the Managing Director, Tamil Nadu State Transport Corporation decision and the subsequent Constitution Bench decision in Jaipur Zila Sahakari Bhoomi Vikas Bank v. Ram Gopal Sharma, the Court identified the governing legal principles:

An order of dismissal under S.33(2)(b) is de facto effective immediately but remains inchoate (incomplete) until the Tribunal grants approval; de jure termination occurs only upon Tribunal approval.
If the Tribunal refuses approval, the employee must be treated as continuing in service and is entitled to consequential benefits, including wages for the period of non-employment; no separate order of reinstatement is required in such circumstances.
S.33-A has a distinct role: when approval is granted and the employee is aggrieved, S.33-A enables him to challenge the approval before the authority where the dispute is pending. But S.33-A does not mean that a refusal of approval leaves the employee unemployed pending further actions by the employee.

Applying these principles to the facts, the Court found that the Single Judge erred in treating the writ petition as not maintainable. Because the Tribunal had refused approval, the appellant was to be regarded as continuing in service and entitled to back-wages. The respondent (a State within Article 12) had failed to implement the Tribunal's order and had not availed itself of available remedies; instead it left the appellant unemployed. The Court characterized this non-implementation as arbitrary conduct attracting writ jurisdiction under Article 226.

The Court further invoked the constitutional protection of life under Article 21, observing that the concept of life includes livelihood; withholding reinstatement and back-wages without valid reason violated that protection and justified equitable relief by way of mandamus.

Holding and Implications

APPEAL ALLOWED

Holding (direct orders): The appeal was allowed. The judgment and order of the learned Single Judge were set aside. The respondents were directed to reinstate the petitioner and grant all consequential benefits available in law. The petitioner was also awarded costs in the amount of Rs. 2,000.

Implications: The Court applied existing Supreme Court precedents to reaffirm that when a Tribunal refuses approval under Section 33(2)(b) the employee must be treated as having continued in service and is entitled to consequential benefits (including back-wages). The decision directly compels the respondent to effect reinstatement and payment; it does not purport to create a new legal principle but enforces and applies settled Supreme Court authority. No independent new precedent was formulated; the Court implemented established law to provide the appellant the specific relief of reinstatement, consequential benefits and costs.

Appeal allowed.

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Rajender Singh v. Delhi Transport Corporation And Another

Sinha, C.J:— This Letters Patent Appeal arises out of an order, dated 23 May, 2000, passed by a learned Single Judge of this Court whereby and whereunder the writ petition filed by the appellant herein was dismissed summarily on the ground that he had an alternative remedy under the Industrial Disputes Act, 1947 (hereinafter called the Act for short).

2. The admitted fact of the matter is as under:

The appellant was served with a chargesheet on 15 December, 1992. A departmental enquiry was held thereinto leading to his termination from service.

An application under S. 33(2)(b) of the Act was filed by the respondent which was marked as OP No. 135/93 and by an order, dated 27 May, 1999, the learned Tribunal dismissed the said application holding:

“I have heard Sh. I.S Mehra, AR of DTC and Sh. M.S Kapoor AR of the workman/respondent. Although the enquiry officer conducted the enquiry and the respondent participated in it but the finding is perverse. As AW1 admitted in the cross-examination that the entire period of absence of the respondent as mentioned in the chargesheet has been treated by the management as leave without pay. On the one hand the management/petitioner has treated the period of absence of the respondent as leave without pay, but on the other hand it seeks approval of the termination of his service on the basis of the above said period of absence from duty. Both the stands are contradictory. Once the management has treated the period of absence as leave without pay then it amounts that management itself has absolved the respondent/his employee from the alleged misconduct, the basis of his termination of service. Consequently, the enquiry report is perverse and it has not helped the petitioner. The issue is decided against the petitioner.

Since the period of absence of the respondent has been treated by the management as leave without pay, therefore, its AR does not press for opportunity to the petitioner to establish the misconduct of the respondent before the Tribunal. In view of the circumstances, the petition has got no merit and the same is dismissed.”

3. It stands admitted that despite the said order the appellant was not reinstated in service nor was he paid his back-wages.

He thereafter filed the aforementioned writ petition. In the said writ petition, a contention was raised on behalf of the respondent that the appellant had a remedy by filing a complaint petition under S. 33(a) of the Act.

4. Ms. Rasmeet K. Charya, the learned counsel appearing on behalf of the appellant, would submit that the effect of non-grant of approval by the Tribunal under S. 33(2)(b) would be that the order of dismissal is void ab initio and as such, he should be treated in service for all intent and purport and thus would also be entitled to the salary during the intervening period.

5. Sri Vinay Sabharwal, the learned counsel appearing on behalf of the respondent, on the other hand, would submit that although the appellant, having regard to the aforementioned order of the learned Tribunal, would be deemed to be in service, he has to take recourse to the proceedings under the Industrial Disputes Act, 1947, inasmuch as during the said period, he might have been serving somewhere else. Furthermore, the learned counsel would contend that by non-grant of approval, the entire departmental proceedings cannot be said to have become non est and as such, it is open to an employer to start a departmental enquiry afresh.

6. Section 33(2)(b) of the Industrial Disputes Act reads thus:

“33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.— (1)…

(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the Standing Orders applicable to a workman concerned in such dispute, or, where there are no such Standing Orders, in accordance with the terms of the contract, whether express or implied, between him and the workman,—

(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman:

Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.”

7. The question as to what would be the effect of non-grant of such an approval by the Tribunal is no longer res integra in view of several decisions of different High Courts and the Apex Court.

8. We may, however, notice only two recent decisions of the Apex Court.

9. In Managing Director, Tamil Nadu State Transport Corporation v. Neethivilangan, Kumbakonam, [2001 (3) L.L.N 34], a Division Bench of the Apex Court upon taking into consideration various decisions including its earlier decision in Punjab Beverages (Private), Ltd., Chandigarh v. Suresh Chand, 1978 (1) L.L.N 665 and Tata Iron and Steel Company, Ltd. v. S.N Modak, [A.I.R 1966 S.C 380], held, in Para. 16, at pages 38 and 39:

“From the conspectus of the views taken in the decisions referred to above the position is manifest that while the employer has the discretion to initiate a departmental inquiry and pass an order of dismissal or discharge against the workman the order remains in an in choate state till the employer obtains order of approval from the Tribunal. By passing the order of discharge or dismissal de facto relationship of employer and employee may be ended but not the de jure relationship for that could happen only when the Tribunal accords its approval. The relationship of employer and employee is not legally terminated till approval of discharge or dismissal is given by the Tribunal. In a case where the Tribunal refuses to accord approval to the action taken by the employer and rejects the petition filed under S. 33(2)(b) of the Act on merit the employer is bound to treat the employee as continuing in service and give him all the consequential benefits. If the employer refuses to grant the benefits to the employee the later is entitled to have his right enforced by filing a petition under Art. 226 of the Constitution. There is no rational basis for holding that even after the order of dismissal or discharge has been rendered invalid on the Tribunal's rejection of the prayer for approval, the workman should suffer the consequences of such invalid order of dismissal or discharge till the matter is decided by the Tribunal again in an industrial dispute. Accepting this contention would render the bar contained in S. 33(1) irrelevant. In the present case as noted earlier the Tribunal on consideration of the matter held that the employer had failed to establish a prima facie case for dismissal/discharge of the workman, and therefore, dismissed the application filed by the employer on merit. The inevitable consequence of this would be that the employer was duty-bound to treat the employee as continuing the service and pay him his wages for the period, even though he may be subsequently placed under suspension and an enquiry initiated against him.”

10. Yet again, the question came up for consideration before the Constitution Bench of the Apex Court in Jaipur Zila Sahakari Bhoomi Vikas Bank, Ltd., Vikas v. Ram Gopal Sharma, [2002 (1) L.L.N 639], wherein Patil, J., speaking for the Constitution Bench held as follows, in Para. 14, at pages 644 and 645:

“Where an application is made under S. 33(2)(b) proviso, the authority before which the proceeding is pending for approval of the action taken by the employer has to examine whether the order of dismissal or discharge is bona fide whether it was by way of victimization or unfair labour practice; whether the conditions contained in the proviso were complied with or not, etc. If the authority refuses to grant approval obviously it follows that the employee continues to be in service as if order of discharge or dismissal never had been passed. The order of dismissal or discharge passed invoking S. 33(2)(b) dismissing or discharging an employee brings an end of relationship of employer and employee from the date of his dismissal or discharge but that order remains incomplete and remains in choate as it is subject to approval of the authority under the said provision, in other words, this relationship comes to an end de jure only when the authority grants approval. If approval is not given, nothing more is required to be done by the employee, as it will have to be deemed that the order of discharge or dismissal had never been passed. Consequence of it is that the employee is deemed to have continued in service entitling him to all the benefits available. This being the position, there is no need of a separate or specific order for his reinstatement. But on the other hand, if approval is given by the authority and if the employee is aggrieved by such an approval, he is entitled to make a complaint under S. 33-A challenging the order granting approval on any of the grounds available to him. Section 33-A is available only to an employee and is intended to save his time and trouble inasmuch as he can straightway make a complaint before the very authority where the industrial dispute is already pending between the parties challenging the order of approval instead of making efforts to raise an industrial dispute, get a reference and thereafter adjudication. In this view, it is not correct to say that even though where the order of discharge or dismissal is inoperative for contravention of the mandatory conditions contained in the proviso or where the approval is refused, a workman should still make a complaint under S. 33-A and that the order of dismissal or discharge becomes invalid or void only when it is set aside under S. 33-A and that till such time he should suffer misery of unemployment in spite of statutory protection given to him by proviso to S. 33(2) (b). It is not correct to say that where the order of discharge or dismissal becomes inoperative because of contravention of proviso to S. 33(2)(b), S. 33-A would be meaningless and futile. The said section has a definite purpose to serve, as already stated above, enabling an employee to make a complaint, if aggrieved by the order of the approval granted.”

11. Keeping in view the aforementioned decisions of the Apex Court there cannot be any doubt whatsoever that learned Single Judge erred in dismissing the writ petition in limine. Apart from the fact that in Managing Director, Tamil Nadu State Transport Corporation, [2001 (3) L.L.N 34 (vide supra), a writ petition under Art. 226 of the Constitution of India has clearly been held to be maintainable, as the order of termination passed against the appellant is void ab initio the respondent being a State within the meaning of Art. 12 of the Constitution of India, had no other option but to pass an order of reinstatement. The appellant is also entitled to his back-wages wherefor, he was not required to take recourse to any other proceeding.

12. The respondent, in the event of its being aggrieved by the order of the Tribunal could take recourse to such remedies which were available to it in law. It neither raised an industrial dispute nor questioned the legality or validity of the said order before an appropriate forum. It, therefore, was bound to implement the said order of the Tribunal. Non-implementation of a valid order of the Tribunal and keeping an employee unemployed was an arbitrary act on the part of the respondent.

13. Keeping in view the expanded definition of life as enshrined under Art. 21 of the Constitution of India which would include livelihood, the appellant herein, in our opinion, could not have been refused to be reinstated nor his back-wages without any valid or justifiable reason, could be withheld.

14. Such deliberate inaction on the part of the respondent attracted the writ jurisdiction of the Court and the appellant was entitled to a writ of or in the nature of mandamus, as was prayed for.

15. It is one thing to say that the respondent had not accepted the order of the Tribunal and questioned its correctness before an appropriate forum, but it is another thing to say that although it accepted the same, it would not give effect thereto. Such a stand on the part of the statutory authority which is a State within the meaning of Art. 12 of the Constitution of India cannot be countenanced.

16. For the reasons aforementioned, this appeal is allowed. The judgment and order passed by the learned Single Judge is set aside and the respondents are hereby directed to reinstate tne petitioner and grant him all consequential benefits, if available in law. He shall also be entitled to costs, which is quantified at Rs. 2000.

Appeal allowed.

Rajender Singh v. Delhi Transport Corporation And Another

Structured Summary of the Opinion (Sinha, C.J.) — Letters Patent Appeal

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Rajender Singh v. Delhi Transport Corporation And Another

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